If there has been one constant in the seemingly endless legal and political wrangling over the fate of the Minnesota Sex Offender Program, it is probably this: Few of the players with a real say have shown the slightest inclination to give an inch.
That familiar dynamic was underscored again on Oct. 29, when U.S. District Court Judge Donovan Frank issued the first in a series of interim orders to fix the “constitutional infirmities” in how the state deals with sex offenders it considers a risk to public safety but who have served out criminal sentences.
In the short term, Frank wants to compel the state to provide annual reviews for all 700 of them, with the evaluations intended to determine whether they are suitable for release or transfer into less restrictive settings than the prison-like facilities at Moose Lake and St. Peter. The judge also wants the state to get busy and build some of those facilities — politically, a radioactive prospect for any elected official with constituents who might live nearby.
The ink wasn’t dry on Frank’s order by the time Assistant Attorney General Nate Brennaman filed the state’s response: a request for an immediate stay — filed the same days as Frank’s order — while the state appeals to the 8th Circuit.
Boiled down, the AG’s 37-page memorandum of law amounts to an indictment of virtually every consequential decision Frank made in the course of the litigation — from his reliance on court-appointed experts to the “strict scrutiny” standard he invoked in his constitutional analysis to his decision to try the first phase of the trial without a jury. And, Brennaman argued, Frank compounded those missteps with his “improper, extensive and costly” interim relief order.
The full-throttle push back didn’t come as a surprise.
Even before the trial, Frank had telegraphed his views about the program (describing it as “clearly broken”) and openly urged the Legislature to address some of the shortcomings. That call to action proved fruitless, as lawmakers punted on the issue for two straight sessions following a stalled reform effort in 2013.
This summer, after Frank declared the program unconstitutional, he summoned Gov. Mark Dayton, top legislative leadership from both parties and all the lawyers to discuss a way forward. That bid for comity also flopped, as Frank himself acknowledged in a subsequent order. “The court was hopeful that the parties would use this conference to productively address the issues identified in the Court’s findings of Fact, Conclusions of Law, and Order,” the judge noted dryly. “Unfortunately, this did not occur.”
Is there a middle ground on the issue?
Hennepin County Attorney Mike Freeman — the top prosecutor in the county that has committed more people to the MSOP than any other — thinks there might be. In September, Freeman decided to wade into the fray with an amicus brief, which he co-authored with two staffers, Assistant Hennepin County Attorneys John Kirwin and Theresa Couri.
While agnostic on some of the constitutional questions, Freeman argued that the MSOP does need to be fixed, that “the logjam that has prevented needed changes in this system must be broken.”
After the brief was drafted, Freeman quietly circulated the document to other county attorneys to see if they wanted to join — to see, in other words, whether they were willing to buck the hardline position that has thus far defined the state’s response.
Washington County Attorney Pete Orput, one of the six county attorneys who signed on, said he thinks it’s important that prosecutors “concede that there are some changes we need to make.” In part, Orput said that’s because he agrees with Freeman on principle. “Mike wants to get this right,” he offered. “He’s not playing political games. And you can’t say that about everyone else who is involved.”
But Orput said he also joined for a more practical reason: the concern that the state’s unyielding defense of the MSOP’s constitutionality will increase the risk that the entire program will be dismantled. “We’re suggesting, hold it, don’t throw the baby out with the bath water,” Orput said. “I have a lot of colleagues who think the 8th Circuit is going to reverse Frank, but I’m not convinced.”
Dan Gustafson, the lead plaintiff’s attorney, praised Freeman for his willingness to take a public position on a toxic issue.
“Mike and the attorneys who joined him on the amicus are essentially the only people who have any leadership role in Minnesota have been willing to say, ‘Hey, let’s fix this problem.’ So they should be commended for that, because it takes courage,” said Gustafson. “I think they’re on the right track. The things they suggest are important steps, even if they don’t go as far as I think they should.”
Will Freeman’s bid for compromise make a difference?
That’s hard to know, said Gustafson. And with the litigation likely to stretch on for years, he added, it probably won’t become clear any time soon.
This week, Minnesota Lawyer talked with Freeman about his views on the MSOP, the politics of sex offender issue, and why he decided to step into the debate. This interview has been edited for length and clarity.
Minnesota Lawyer: So why are you getting into this?
Freeman: Like a number of people, I feel we really need to make some changes in the program at the MSOP. I was hoping the Legislature would do that. The Minnesota Senate passed a fairly decent plan [in 2013] but when it got to the House everybody got scared to death and ran away. As a former state senator, I know how difficult these things are. But that doesn’t diminish the fact that the program is not working and that it needs to be changed.
Because this is a political third rail, I wanted to give Judge Frank an indication that there are some people who agree there are problems with the program, and that could help him to make some changes that politicians don’t seem willing to make.
ML: Such as?
Freeman: We need to have periodic reviews [of the continued need for confinement]. I think basic rights in this country require that. Frank wants annual reviews. I want every two years. That’s a difference that reasonable people can disagree about. But it’s one of the constitutional problems with the program, as applied, that we can resolve.
ML: From the brief, it seems, officially at least, that you’re agnostic on some of the constitutional issues?
Freeman: Yeah, that’s a good phrase. There’s a whole lot of constitutional stuff going back and forth. I’m not as hung up on the constitutional issues as much as how I think this program must be changed. But in my view, a program that doesn’t include periodic reviews begins to evade the basic concept of liberty.
ML: You worked on the amicus brief, right?
Freeman: If you look carefully, some of the footnotes sound a little different than the body. Guess what? I wrote them. I spent a lot of time on it.
ML: Why the personal interest in the issue?
Freeman: In the ’70s, I clerked for federal Judge Earl Larson on the Cambridge [State Hospital] case, in which Judge Larson said, ‘We can’t indefinitely keep people in these kinds of hospitals.’ And when I started my legal career, I represented people who were in the commitment process in Hennepin County.
I also worked in the Minnesota Senate in the ’80s, when the question came up about [how to house] people with severe disabilities. The courts said we needed to find less restrictive alternatives for people who were being held indefinitely in institutions, that people have a right to not be institutionalized for life. So we came up with some money to build a series of state operated community facilities, which took people who had profound disabilities but didn’t require full time institutionalization and let them live in the community. These folks were not sexual predators. It was different. But the concept — [placing them in] the least restrictive alternative — was the same.
ML: But there are some pretty disabled people at MSOP?
Freeman: Yeah, there are some very infirm people behind barbed wire at Moose Lake and St. Peter, people who are in their 70s. Those people who are not going to re-offend and we need to get them out of there. In a similar fashion, there are some people in the MSOP who have never been convicted of a crime as adults. I don’t think our Constitution allows us to hold them forever, without a regular evaluation or any opportunity to prove they can come back [to open society].
ML: All but one of the county attorneys who signed on to your amicus brief comes from the metro area. Why is that?
Freeman: The attorney general does the sexual offender commitment work for most of the smaller counties and she asked that no one participate in the remedy phase — that the position of the attorney general would be no, no and no and to challenge it on constitutional grounds. We do our own work in Hennepin County.
I didn’t have to do this, and the other folks didn’t have to sign on. Frankly, I’m sticking my neck out. But collectively, as people who take frequently take away people’s liberty, we’re saying, ‘You can’t keep a person locked up for 10, 15 or 20 years, particularly after they’ve done their criminal time, unless there is a profound reason. Not just the fact that 15 years ago there was concern there may re-offend.’
ML: What do you make of the state’s reply to Frank’s interim order?
Freeman: It would be disingenuous of me not to say that I have had profound disagreements with the attorney general [Lori Swanson]. This particular case has nothing to do with that and, to be fair, she has to defend the constitutionality of the law.
What I wanted to do, and what I wrote, is to say, number one, not everybody in official positions agrees with the attorney general. Number two, there are some things in the program, as applied, that violate constitutional rights. Number three, people in these settings are entitled to a review on a periodic basis. Number four, some of these people are entitled to live in less restrictive alternatives.
ML: You’ve been around for the entire arc of the MSOP. How have the political dynamics of the issue changed over time?
Freeman: When I was running for re-election in the Minnesota Senate [in 1986], we’d had some very tough votes about increasing sentences for certain sexual crimes, particularly crimes against kids. We doubled the sentence. It was ridiculously low — five or six years — and we took it up to 10 or 12. The Republicans wanted to embarrass the Democratic majority and tried to double it again. Quadruple the sentence. They put the vote on the board and I had to vote against it.
So my opponent put out a [campaign] piece saying Freeman is against meaningful sentences for child perverts, with a picture of a guy in a black rain coat. I knew him from the community, so I called him up and said, ‘George, this isn’t you. This is what the vote was about. You don’t mean this. You can disagree with me vote on tax increases or my vote on this or that, but this is nuts.’ To his credit, he took it out of his brochure. Can you imagine that happening now? It was a different world.